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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

TAMP A DIVISION

MATT DELANO, MITCHELL GOODSON, TIM HINEFELT, TOM BANCROFT, and all other persons similarly situated,

Plaintiffs, vs.

MASTEC, INC. and MASTEC NORTH AMERICA, INC.,

Defendants. _____________________________ -1

ORDER

Case No. S:10-CV-320-T-27MAP

BEFORE THE COURT is Plaintiffs' Motion to Allow Notice to Be Sent to Potential

Plaintiffs Informing Them of Their Right to Opt-In to This Case (Dkt. 13), to which Defendants have

responded (Dkt. 19). Upon consideration, the motion is DENIED.

Background

Defendants MasTec, Inc. and MasTec North America, Inc. (together, "MasTec") are Florida

corporations with their principal place of business in Coral Gables, Florida. (Dkt. 4, ~~ 8-9).

MasTec contracts with DirectTV for the installation of satellite dishes, satellite receivers, and related

equipment necessary for receiving satellite signals from DirectTY. (Dkt. 8 at 2). Plaintiffs Matt

Delano and Tom Bancroft l were formerly employed by MasTec as satellite installation and service

I A November 15,2010 Order (Dkt. 69) granted Defendants' motion to compel arbitration and stayed this case as to Plaintiffs Mitchell Goodson and Tim Hinefelt.

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Case 8:10-cv-00320-JDW-MAP Document 93 Filed 06/02/11 of 12 PageID 2326

technicians.2 Plaintiffs worked out ofMasTec' s Sebring, Florida, facility or "garage" (Dkt. I ,-r,-r 3-6),

which employs about 50 technicians (Dkt. 38,-r 1).

Plaintiffs present evidence that the head supervisor ofthe Sebring facility was Daniel Miller,

and the regional supervisor for the Sebring and Tampa facilities was Tim Stratton. Dkt. 38,-r,-r 2-3.

Plaintiffs' direct supervisors included Ike Eldridge, Ivan Gonzalez, Russell Plamann, and Damien

Saldana. Id.,-r 3; Dkt. 13-20,-r 2.

Plaintiffs brought this action on behalf of themselves and other similarly situated persons

pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (FLSA).

Plaintiffs allege that MasTec technicians are paid on a "piece-rate" basis for the performance

of jobs completed and are generally paid no additional amount for time spent (1) traveling to and

from eachjob assignment, (2) obtaining necessary tools and equipment from the Sebring facility; (3)

closing out assigned jobs through a central call center; and (4) at job sites at which an installation

or service is not completed or the order is cancelled (e.g., because the customer does not show up).

Dkt. 1 ,-r,-r 14-15.

Plaintiffs further allege that (a) since the end of2007 or early 2008, MasTec has informed

technicians that they may not work more than forty hours per week without authorization, which will

ordinarily be denied, and (b) MasTec has an informal practice of informing technicians that, if they

report all hours worked and their weekly hours approach forty, they will be given no additional

assignments for the week. Id.,-r,-r 18-20. Plaintiffs allege that, in this way MasTec encourages

technicians to under-report their working hours. Id.,-r 21.

2 Defendants allege that Plaintiffs actually were employed by MasTec Services Company, Inc. ("MasTec Services"). Although Defendants and MasTec Services consent to the substitution of MasTec Services as party Defendant, Dkt. 4 ~ I n.l, no party has moved for substitution.

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Plaintiffs allege that Mas Tee supervisors are aware that technicians work many more than

forty hours per week and information demonstrating that fact is readily available to them. Id. ~~ 21-

22.3 Plaintiffs allege that, despite this knowledge, MasTec has failed to compensate technicians for

hours worked in excess of forty per week at one and one-halftimes their regular rate of pay. Id. ~

24.

Plaintiffs submit their own declarations and those of Rubin Allen and Darryl Barnes. Each

declarant states that he regularly or almost always worked in excess of forty hours per week.4

Several declarants similarly assert (or argue) that their supervisors could not have been

unaware that they (or they and other technicians) were working more than forty hours per week

because the technicians generally reported to work at 7:00 a.m. or earlier and were frequently

assigned jobs scheduled between 4:00 and 8:00 p.m., whose completion they reported to a MasTec

call center or recorded on a handheld device.s

The named Plaintiffs6 as well as Garcia, Allen, and Barnes have all specifically alleged that

3 The FLSA provides that an employer may not "employ" a covered employee for a workweek longer than forty hours unless the employee receives overtime compensation at a rate not less than one and a halftimes his regular rate. 29 U.S.C. § 207(a)(I). "A person is employed ifhe or she is suffered or permitted to work." Allen v. Board 0/ Pub. Educ./or Bibb County, 495 F.3d 1306,1314 (lIth Cir. 2007) (citing 29 U.S.C. § 203(g)); see also 29 C.F.R. § 785.11 ("Work not requested but suffered or permitted is work time."); Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 533 (S.D. Tex. 2008) ("An employer must compensate employees for all work it suffers or permits."). "The reason an employee continues to work beyond his shift is immaterial; if the employer knows or has reason to believe that the employee continues to work, the additional hours must be counted." Reich v. Department o/Conservation and Natural Res., 28 F.3d 1076, 1082 (lIth Cir. I 994)(citing 29 C.F.R. § 785.11).

4 See Dkt. 13-17 at I; Dkt. 13-19 ~ 3; Dkt. 13-20 ~ 4; Dkt. 13-18 ~ 2; Dkt. 33 ~ 4; Dkt. 44-1 ~ 4. At his deposition, Bancroft added that "everybody was working over 40." Bancroft Dep. at 83:18-25. Similarly, Delano stated that "[p ]retty much every ... technician that works out ofthe Sebring office works over 40 hours a week." Delano Dep. at 192:11-13.

5 See Dkt. 13-17 at 2; Dkt. 13-19 ~ 5; Dkt. 13-20 ~ 4; Dkt. 13-18 ~~ 2,4.

6 Although the Court has ruled that Hinefelt and Goodson must resolve their claims in arbitration, their affidavits may be considered in determining the existence of other technicians similarly situated to Delano and Bancroft.

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they worked more than forty hours per week for certain weeks but were not paid overtime for these

hours.7 Additionally, each declarant either expressly states that he was often not paid overtime for

hours worked in excess of forty, 8 or implies as much by stating that he under-reported his hours at

the direction or encouragement of his supervisors.9

Delano and Hinefelt state that unspecified supervisors told them that, if they wanted to work

all week, they had to under-report their hours. 10 Allen says that technicians were informed by an

unspecified person that "[i]fwe wanted to work additional jobs and get paid the piece rate for those

jobs ... we had to put 40 hours on our time sheets even if we worked more than 40 hours in a week."

(Dkt. 33 ~ 6). Goodson was told by unspecified supervisors that he always had to report only forty

hours and that he could be disciplined for reporting more. 11 Goodson adds that, if technicians

reported more than forty hours on their times sheets, they would receive no additional work for the

week, and they would often reach forty hours by Wednesday. (Dkt. 13-18 ~ 4). Unspecified

supervisors told Barnes that he should seek work elsewhere ifhe wanted to report more than forty

hours per week. (Dkt. 44-1 ~ 5).

Delano states that on several occasions when he reported more than forty hours, his

7 See Okts. 28-1, 30-1, 31-1, & 45-1.

8 See Okt. 33 ~ 4; Okt. 44-1 ~ 4; cf Okt. 38 ~ 6.

9 Defendants contend (Okt. 19 at 12) that Bancroft does not state that he under-reported his hours. However, Bancroft states that his supervisors told him to report 40 hours per week, Okt. 13-20 ~ 5, and at his deposition, he stated that he was not paid overtime for the majority of his overtime hours or at least not compensated for "a lot" of jobs. Bancroft Oep. at 80: 1-81: 17.

10 See Okt. 38 ~ 4 (supervisors told Delano that ifhe wanted to work a six-day week, he would have to report only 40 hours); Okt. 13-19 ~ 4 (on several occasions, unspecified supervisors told Hinefelt to "take care of [his] time sheets" and informed him that, ifhe wanted to work all week, he had to "adjust [his] time sheets" to ensure he reported only 40 hours).

11 See Okt. 13-18 ~ 5; cf Okt. 13-20 ~ 5.

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supervisor changed his time card to reflect that he worked only 40 hours. (Dkt 3 8 ~ 4 ). Delano adds

that on other occasions, supervisors including Miller, Eldridge, and Saldana told to him change his

time sheet to reflect only 40 hours. Id. Similarly, Allen and Barnes state that unspecified

supervisors directed them to alter their time sheets to reflect only forty hours. 12 During his first week

of employment, Hinefelt received an oral warning from an unspecified supervisor for accurately

reporting that he had worked eighty hours and, as a result, he changed the time sheet and began

under-reporting his hours. (Dkt. 13-19 ~ 6).

Plaintiffs also present evidence that upper management enforced a forty-hour reporting

policy. Delano states that at a meeting with Miller and Stratton around May, 2009, after Delano

complained that he was working more than forty hours and not being paid overtime, Stratton said

that ifhe wanted to work a six-day work week, Delano "knew what [he] had to do" with his time

sheet. (Dkt. 38 ~ 6).

Defendants respond with evidence that MasTec has policies intended to ensure that

technicians were correctly paid for all compensable working time. MasTec provides employees with

guidelines ("the guidelines" [Dkt. 19-1 at 2]) defining compensable working time and with a

"Question and Answer" fact sheet (the "fact sheet" [id. at 4-5]) that answers frequently asked

questions regarding compensable working time and provides a telephone number (the "hotline") for

anonymously reporting any instruction to under-report working time.

Additionally, the time sheets on which employees are required to record their working time

(Dkt. 19-1 at 7) include a daily time record certification stating, inter alia, that (1) the employee has

recorded all his compensable working time; (2) the employee understands he must obtain his

1" ~ Dkt. 33 ~ 5; Dkt. 44-1 ~ 5.

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supervisor's permission to work more than forty hours per week and that, if he works overtime

without permission, he will be paid for the time but may be subject to discipline up to and including

termination; (3) the employee has not been directed by any manager or supervisor to under-report

his hours; and (4) the employee understands he can use the hotline to anonymously report any

improper instruction to under-report his working time.

All four named Plaintiffs acknowledged receiving and reviewing the guidelines and the fact

sheet (Dkt. 19-2), and they as well as Allen, Barnes, and other technicians used time sheets

containing the daily time certification. 13 Moreover, Barnes and Allen were opt-in plaintiffs in Stahl

v. Mas Tec, Inc., No. 8:05-cv-1265-T27TGW (M.D. Fla.), see Dkt. 33 ~ 3; Dkt. 44-1 ~ 3, and

pursuant to the settlement agreement in Stahl they executed claims forms (Dkt. 62-1 § II; Dkt. 47

§ II) stating that they agreed (a) to comply with MasTec's payroll reporting policies and accurately

report all working time; (b) to immediately report any instruction by anyone to work off-the-clock

or otherwise under-report any working time; and (c) not to perform any off-the-clock work.

Defendants have also submitted unsworn copies of electronic payroll records and time sheets

reflecting that each named Plaintiff reported some overtime hours during certain periods and

received overtime pay for those hours. 14

Plaintiffs seek an order authorizing notice of this action to be sent to "similarly situated

persons who have worked as Direct TV installation and repair technicians for [MasTec] within the

State of Florida since on or about February 5, 2007." (Dkt. 13 at 1). Said differently, Plaintiffs seek

13 See Dkts. 36-2, 36-4, 36-6, 36-8; Dkt. 62-2 at 1 ~ 4,2-3; Dkt. 46-2 at 1 ~ 4,2-3. MasTec's Director of Human Resources for Advanced Technologies, the MasTec service line responsible for employing satellite service technicians, states that she has reviewed all Complaints received since October 2007 and she has no knowledge of complaints made by Allen (Dkt. 46-4 at 1 ~ 4) or Barnes (Dk. 62-3 ~ 4).

14 See Dkts. 36-1, 36-2, 36-3, 36-4, 36-5, 36-6, 36-7, 36-8.

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"conditional certification" of a putative class comprising those technicians. 15

Defendants argue that conditional certification is inappropriate because (1) the proposed class

includes many technicians who already received notice of virtually identical claims as part of the

settlement in Stahl; (2) Delano and Bancroft are not similarly situated to the many current and former

potential opt-ins whose claims are subject to mandatory arbitration; (3) Plaintiffs provide no

evidence that other similarly situated technicians wish to join this lawsuit; and (4) given MasTec's

policies and procedures requiring employees to accurately report their hours, Plaintiffs' allegations

that they failed to do so will require individualized inquiry and thus are not appropriate for

adjudication on a class-wide basis.

Standard

An FLSA action may be maintained "by anyone or more employees for and in behalf of

himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Certification

of collective actions in FLSA cases is based on a theory of judicial economy, by which "[t]he judicial

system benefits by efficient resolution in one proceeding of common issues of law and fact arising

from the same alleged discriminatory activity." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,

170 (1989). District courts in the Eleventh Circuit generally utilize a two-tiered approach in making

collective action certification determinations under the FLSA:

15 In Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (I lth Cir. 2008), the Eleventh Circuit noted that the decision whether to approve notice to similarly situated employees "is also referred to as conditional certification," and stated that district courts "should treat the initial decision to certifY and the decision to notifY potential collective action members as synonymous," id. at 1261 nAO. "Conditional certification" is something of a misnomer because similarly situated employees do not become parties unless and until they affirmatively opt in to a collective action lawsuit under the FLSA. See 29 U.S.C. § 216(b) ("No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought."); Morgan, 551 F.3d at 1259 ("Because similarly situated employees must affirmatively opt into the litigation, the decision to certifY the action, on its own, does not create a class of plaintiffs.").

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The first determination is made at the so-called "notice stage." At the notice stage, the district court makes a decision - usually based only on the pleadings and any affidavits which have been submitted - whether notice of the action should be given to potential class members.

Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in "conditional certification" of a representative class. If the district court "conditionally certifies" the class, putative class members are given notice and the opportunity to "opt-in." The action proceeds as a representative action throughout discovery.

The second determination is typically precipitated by a motion for "decertification" by the defendant usually filed after discovery is largely complete and the matter is ready for trial. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question.

Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218 (1Ith Cir. 2001).

At the notice stage, the court must determine whether: 1) there are other employees who

desire to opt in to the action; and 2) the employees who desire to opt in are "similarly situated."

Dybach v. State of Fla. Dep't of Corrs., 942 F.2d 1562, 1567-68 (11 th Cir. 1991). Although this

determination is made using a fairly lenient standard, the plaintiff must offer "detailed allegations

supported by affidavits which successfully engage defendants' affidavits to the contrary." Grayson

v. K Mart Corp., 79 F.3d 1086, 1097 (1Ith Cir. 1996) (internal quotation marks and citation

omitted). Ultimately, the district court must satisfy itself that there are other employees who are

similarly situated and who desire to opt in. Dybach, 942 F.2d at 1567-68.

Discussion

"[P]laintiffs have the burden of demonstrating a reasonable basis for crediting their assertions

that aggrieved individuals exist[] in the broad class that they proposed." Haynes v. Singer Co., Inc.,

696 F.2d 884,887 (11 th Cir. 1983). Evidence of similarly situated employees who desire to opt in

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may be based on affidavits of other employees, consents to join the lawsuit filed by other employees,

or expert evidence on the existence of other similarly situated employees. Davis v. Charoen

Pokphand (USA), Inc., 303 F. Supp. 2d. 1272, 1277 (M.D. Ala. 2004).

A plaintiffs or counsel's belief in the existence of other employees who desire to opt in and

"unsupported expectations that additional plaintiffs will subsequently come forward are insufficient

to justifY" certification of a collective action and notice to a potential class. Mackenzie v. Kindred

Hasps. East, L.L.C, 276 F. Supp. 2d 1211, 1220 (M.D. Fla. 2003) (citing Haynes, 696 F.2dat 887);

Horne v. United Servs. Auto. Ass'n, 279 F. Supp. 2d 1231, 1236-37 (M.D. Ala. 2003). Notice to a

potential class is not appropriate to determine whether there are others who desire to join the lawsuit.

Mackenzie, 276 F. Supp. 2d at 1220 (citing Dybach, 942 F.2d at 1567-68) (emphasis added).

Rather, a showing that others desire to opt in is required before certification and notice will be

authorized. Id.

Although Plaintiffs' burden at the notice stage is not heavy, it is not "invisible." Brooks v.

Rainaldi Plumbing Inc., No. 6:06-cv-631, 2006 WL 3544737, at *2 (M.D. Fla. Dec. 8,2006).

Accordingly, "federal courts across the Middle and Southern Districts of Florida have routinely

denied requests for conditional certification where plaintiffs attempt to certifY a broad class based

only on the conclusory allegations of a few employees." Simpkins v. Pulte Home Corp., No.

6:08-cv-130-0rl-19DAB, 2008 WL 3927275, at * 2 (M.D. Fla. Aug. 21, 2008) (collecting cases).

The declarations submitted by Plaintiffs are silent as to other technicians interested injoining

this lawsuit. However, as to the Sebring facility, Plaintiffs have identified one technician, Travis

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Garcia,16 who wishes to opt in to this lawsuit. As to the Tampa facility, Plaintiffs have identified

two: Rubin Allen and Darryl Barnes. (Dkts. 30-1, 31-1). Additionally, Plaintiffs present some

evidence of an informal policy at the Sebring and Tampa facilities of encouraging technicians to

work more than forty hours per week but to report only forty hours.

On the other hand, MasTec has submitted the declarations of five current technicians at the

Tampa facility who indicate they do not wish to participate in this lawsuit. See Dkts. 43-1,43-2,43-

3,43-4,43-5). These technicians state that they received instruction on MasTec's policies regarding

accurate reporting of hours worked, they periodically (in some cases) or often (in others) or almost

always (in others) worked overtime hours, and they were correctly paid for all hours worked. Id.

As to facilities other than the Sebring and Tampa facilities, Plaintiffs' allegations and

evidence of technicians interested injoining this lawsuit are plainly insufficient. As to the Orlando

facility, Plaintiffs identify one technician, Abel Nunez, who wishes to opt in. However, Nunez's

claims are evidently subject to mandatory arbitration. 17 Thus, he is not similarly situated to Delano

or Bancroft. Otherwise, Plaintiffs have submitted consents of (1) two technicians who worked out

ofMasTec facilities in Georgia and North Carolina (Steven Walker and Sire Rasce E. Brown), which

obviously do not indicate the existence of Florida technicians who wish to join this lawsuit, and (2)

technicians (Jamie Evett, Scott Ferguson, and Anthony Betschner) whose place of employment is

16 Garcia apparently worked out of the Sebring facility. See Dkt. 78 at 2. But see Dkt. 40 at 8 (stating in oral argument that Garcia worked out of the Tampa facility).

17 Defendants present uncontroverted evidence that Nunez signed an employee acknowledgment (Dkt. 53-2) stating that he (i) understood MasTec's Dispute Resolution Policy ("DRP"), which contains a provision for mandatory arbitration of employment-related disputes, (ii) agreed to review the DRP immediately, and (iii) acknowledged that he would be bound by the DRP if he did not affirmatively opt out by returning a signed form to MasTec's legal department within 30 days. Plaintiffs do not dispute that Nunez failed to timely opt out of the DRP. Indeed, it appears that Nunez through counsel sent MasTec an arbitration demand in March, 2010. See Dkt. 53-4 at 4.

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not ascertainable l8 and whose claims are, like Nunez's, evidently subject to mandatory arbitration. 19

Even as to the Sebring and Tampa facilities, Plaintiffs have not presented sufficient evidence

that there are other technicians who desire to opt in to this action. During the fifteen months that this

lawsuit has been pending, Plaintiffs have been able to identify only three technicians at the Sebring

and Tampa facilities who desire to join or who have expressed an interest in joining this action.

Plaintiffs' unsupported beliefs and expectations that others may desire to opt in are insufficient to

justify certification of a collective action and notice to a potential class. See Mackenzie, 276

F.Supp.2d at 1220 (certification and notice are not appropriate to determine whether others desire

to opt in).20

Plaintiffs essentially ask the Court to infer the existence of other technicians who wish to opt

in to this lawsuit from their allegations and evidence of an informal policy at the Sebring and Tampa

facilities of encouraging technicians to under-report their hours worked. However, in this Circuit,

an affirmative showing that other employees wish to join this lawsuit is a separate requirement for

conditional certification. As Plaintiffs have been able to identify only three potential opt-ins not

18 Defendants appear to suggest (Dkt. 78 at 1-2) that these opt-ins were not employed at the Sebring facility. However, the Court will not speculate as to which other facility employed them.

19 Defendants present uncontroverted evidence that Walker, Brown, Evett, Ferguson, and Betschner signed employee acknowledgments (Dkt. 78-1) stating that they (i) understood the DRP (ii) agreed to review the DRP immediately, and (iii) acknowledged that they would be bound by the DRP if they did not affirmatively opt out by returning a signed form to MasTec's legal department within 30 days. Plaintiffs do not dispute that Walker, Brown, Evett, Ferguson, and Betschner failed to timely opt out of the DRP.

20 See also Wombles v. Title Max of Ala., Inc., No. Civ.A. 303CV1158CWO, 2005 WL 3312670, at *3 (M.D. Ala. Dec.7, 2005) (two consents to join and five nearly identical affidavits by plaintiffs indicating that they "believe" others desire to join the lawsuit were insufficient to establish that others desired to opt in); Slaughter v. CVS Rx Servs., Inc., No. CV03-CO-01403-S, slip op. at 12-13 (N.D. Ala. Nov. 1,2004) (thirteen plaintiffs and one affidavit by an employee who desired to join was insufficient); Mooney v. Advanced Disposal Servs., No.3 :07 -CV -1018-WKW, 2008 WL 3843550, at *3 (M.D. Ala. Aug. 14,2008) ("[T]he court views the identification of only four plaintiffs-be they all named as such or potential opt-in plaintiffs-as a weak indicator that other employees desire to opt-in under the circumstances. ")

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subject to mandatory arbitration in fifteen months and after substantial discovery (including

depositions), the Court finds that Plaintiffs have not demonstrated a reasonable basis for crediting

their assertions that other aggrieved employees exist who wish to opt-in to this action.

Conclusion

For the foregoing reasons, Plaintiffs' Motion to Allow Notice to Be Sent to Potential

Plaintiffs Informing Them of Their Right to Opt-In to This Case (Dkt. 13) is DENIED.

J~t-DONE AND ORDERED in chambers this +-day of June, 2011.

/ ..

Copies to: Counsel of Record

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